RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02401
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150529
SEPARATION DATE:  20070515

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Supply Specialist) medically separated for lower back pain.  The low back condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was placed on limited duty and referred for a Medical Evaluation Board (MEB).  “Lumbago” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20070316	VA* - (~1 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5235	20%	Lumbosacral Strain	5010-5237	10%	20070602	
			Radiculopathy, Right Lower Extremity	8520	10%		
Other MEB/PEB Conditions x 0	Other x 1	
RATING:  20%	COMBINED RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20070713(most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Low Back Pain Condition.  Review of the service treatment record found that the CI sustained a compression fracture with 40% loss of the L3 vertebral body height in a jet skiing accident in August 2005, and required initial hospitalization.  Due to persistent pain, a vertebroplasty (injection of bone cement) was performed in February 2006.  Although there was some benefit, back pain associated with radiation down the right leg occurred with prolonged sitting or standing.  Subsequent imaging studies did not show evidence of disc disease or of canal or neuroforaminal narrowing.

The narrative summary on 26 October 2006 (7 months prior to separation) noted continued use of narcotic medication, which worked very well for the back pain.  Examination recorded that she was 30 weeks pregnant, and that gait was normal.  Lumbar spine tenderness was present, but range-of-motion (ROM) was not performed.  The exam was also silent regarding muscle spasm, guarding or spinal contour.  Lower extremity strength and sensation was intact.  The MEB physical exam on 14 November 2006 recorded lumbar spine tenderness.  A pain management note on 5 March 2007 (2 months prior to separation) reported low back pain traveling down the right hip to the knee.  Exam showed lumbar tenderness and no spasm.

At the VA Compensation and Pension (C&P) exam on 2 June 2007 (a month after separation) the CI reported lower back pain that radiated to the right hip.  She also noted right hip pain and numbness that did not extend below the knee.  Exam showed a normal gait without use of assistive devices.  Muscle spasm was not mentioned.  A mild, tender bony protrusion at the L2-3 level was present.  Measured flexion was 90 degrees (normal to 90 degrees) and combined ROM was 240 degrees (normal 240 degrees).  ROM was painless except for extreme flexion.  There was no additional limitation of motion after repetition.  Lower extremity neurologic findings were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the 5235 code (vertebral fracture or dislocation) while the VA rated the condition at 10% using a 5010-5237 dual code (traumatic arthritis, lumbosacral strain).  The basis for the PEB’s rating was unclear, since a 20% rating requires limitation of flexion greater than 30 degrees but not greater than 60 degrees, combined ROM not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  None of these criteria were recorded on service exams proximal to the time of separation.  While there was no compensable limitation of motion noted on the C&P exam (which provided the only ROM in evidence proximal to separation) Board members agreed to a 10% rating, but no higher, was justified IAW VASRD §4.59, or for localized tenderness not resulting in abnormal gait or abnormal spinal contour.  The Board therefore concluded that there was no support for a rating higher than the 20% assigned by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic low back pain condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140515, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd XX Sep 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC